Gerrymander Gazette - November 2016

Posted by Dan Vicuña on November 28, 2016

Historic Decision in Wisconsin

For the first time in the history of the United States, a court has ruled that partisan gerrymandering violates the U.S. Constitution. A three-judge federal district court panel in Whitford v. Gill held that Wisconsin State Assembly districts drawn by the Wisconsin Legislature and approved by the governor after the 2010 census violated voters’ Fourteenth Amendment equal protection and First Amendment rights. Campaign Legal Center brought the case on behalf of several Wisconsin voters. The court summarized its findings regarding Act 43, the statute creating the challenged Assembly map:

     "We find that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect.

     Finally, we find that the discriminatory effect is not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest. Consequently, Act 43 constitutes an unconstitutional political gerrymander." 

The court found clear evidence that the map was intended to give Republicans a partisan advantage.

"The drafters used their composite score to evaluate the statewide maps that they had drawn based on the level of partisan advantage that they provided to Republicans. In many instances, the names of the maps reflected the level of partisan advantage achieved by the districting plan; for instance, there are maps labeled 'Assertive' and 'Aggressive.' Foltz testified that 'aggressive' in this context meant 'probably that [the map] was a more aggressive map with regard to GOP leaning.'"

As the judges concluded: “The drafters’ concern with the durable partisan complexion of the new Assembly map was present from the outset of the legislative process.”

The decision detailed why the manipulation of districts for partisan gain violates the Constitution, stating that “the First Amendment and the Equal Protection Clause protect a citizen against state discrimination as to the weight of his or her vote when that discrimination is based on the political preferences of the voter.” The court added that “apportionment plans that invidiously minimize the voting strength of political groups may be vulnerable to constitutional challenges because each political group in a State should have the same chance to elect representatives of its choice as any other political group.” (citations and internal quotes omitted)

The U.S. Supreme Court has acknowledged that “partisan gerrymanders are incompatible with democratic principles,” but has not yet overturned a redistricting map due to a perceived lack of a judicially manageable standard for identifying such gerrymanders. The plaintiffs in Whitford proposed and the court used the efficiency gap to measure Wisconsin’s gerrymander. The efficiency gap demonstrated how Democratic voters in Wisconsin were far more likely than Republican voters to be, in some regions, “packed” into very few districts to limit their influence over surrounding districts and, in other regions, “cracked” into many districts to limit their influence over any one of them.  

Redistricting cases are appealed directly from three-judge federal panels to the U.S. Supreme Court, so this case could land in front of the high court in the fall of 2017. Other partisan gerrymandering cases currently being litigated include Shapiro v. McManus, which challenges Maryland’s congressional districts, and Common Cause v. Rucho, which challenges North Carolina’s congressional map.

2016 Congressional Races Lacked Competition

As Common Cause detailed in Restoring Voter Choice: How Citizen-Led Redistricting Can End the Manipulation of our Elections, gerrymandering deprived voters of choices at the ballot box on Election Day. Prior to the election, we noted that many congressional and state legislative district maps were so skewed to favor one party that voters in an extraordinary number of districts would see just one major party candidate on the ballot on November 8. In many cases, campaigns ended even before the primary because only one person from one of the major parties filed to run and the opposing party did not field a candidate. Legislators were almost four times more likely than citizen redistricting commissions to produce congressional districts that deny voters choices in a primary and more than twice as likely to produce districts that deny voters choices in the general election.

As a result, very few 2016 congressional districts across America were competitive. Only four percent – 19 districts total – were decided by five points or fewer. Only eight percent – 36 districts nationwide – were decided by 10 points or fewer. The rest were decided long before Election Day.


Office: Common Cause National, Common Cause Wisconsin

Issues: Voting and Elections, Redistricting

Tags: Redistricting Reform, Redistricting

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